Ontario’s Court of Appeal recently addressed the issue of “discoverability” in a contractor negligence and public health authority claim.
In Presley v. Van Dusen, 2019 ONCA 66, the homeowners retained a contractor to install a septic system in 2010. After the installation was completed and approved by the inspecting public health authority, the homeowners noticed a smell from the system in 2011. By the spring of 2013 there was smell and sewage emanating from the system. Throughout, the contractor assured the homeowners that he would fix the problem and made several attempts to do so. In Summer 2015, the health authority issued an Order to Comply, requiring the homeowners to replace the system.
The homeowners commenced an action in August 2015 against the installation contractor and, in January 2016, added the public health authority that approved the initial installation as a defendant to that action. The question was: were the homeowners out of time to commence such proceeding?
At first instance, the Trial Judge held that the two-year limitation period to bring the action had passed, finding that by Spring 2013, when there was smell and sewage coming from the system, any reasonable person would know that injury, loss or damage had occurred and was caused or contributed by an act or omission of the contractor.
However, the Ontario Court of Appeal (“ONCA”) overturned the Trial Judge’s decision, holding that the Trial Judge failed to conduct an analysis under section 5(1)(a)(iv) of the Limitations Act as to when the homeowners knew or should’ve known that a proceeding would be an appropriate means to remedy their loss or damage.
Contrary to the Trial Judge’s finding, the ONCA found that the homeowners were not aware in Spring 2013 (and, under section 5(1)(b) of the Limitation Act, a reasonable person in their situation would not have known) that an action would be an appropriate means to remedy their loss or damage, because they had reasonably relied upon the contractor’s assurances that the problem could (and would) be fixed. The ONCA determined that the homeowners were entitled to rely on the contractor’s superior and knowledge and expertise (even though he was not a member of a traditional expert profession). The ONCA’s finding was that the homeowners did not know that an action would be an appropriate means to remedy their loss until the contractor had given up on remediation efforts in Spring 2014.
Thus, the ONCA ultimately held that the homeowners had commenced their action within the two-year limitation period. In addition, the ONCA found that the homeowners’ claim against the health unit was also brought within the two-year period. There are important implications in this decision, as third parties such as manufacturers may be exposed to extended limitation periods as a result of the mitigating actions and representations of others such as a contractors or service providers.
A copy of the decision can be found here.
Two teenagers, C.C. and J.J., who had been drinking and smoking marijuana decided to go out after midnight to steal valuables from unlocked cars. They ended up at the defendant’s unsecured garage and found an unlocked car with keys in the ashtray. C.C. and J.J. decided to steal the car and go for a joyride on the highway where the car crashed. J.J. suffered a catastrophic brain injury.
The central issue before the court was whether a commercial garage owner owed a duty of care to J.J., a minor who was injured while joyriding in a vehicle he helped steal from the defendant’s premises.
In a 7-2 ruling, the Supreme Court of Canada (S.C.C.) said ‘no’, overruling the Court of Appeal’s decision that a novel duty of care should be recognized in such circumstances.
The Court of Appeal, in its application of the Anns-Cooper test for establishing a novel duty of care, had held: (i) that it was foreseeable that minors might take a car from the defendant’s garage that was made easily available to them and may consequently injure themselves, and (ii) that there was sufficient proximity between the defendant and J.J because the defendant should have had minors like J.J. in mind when he considered security measures at his garage.
However, Justice Karakatsanis, speaking for the majority of the S.C.C., held that the foreseeability stage of the Anns-Cooper test had not been met, and declined to find a new duty of care in the circumstances. She concluded that while the risk of theft was a reasonably foreseeable consequence of leaving a garage and car on its premises unsecured, it was not reasonably foreseeable that the stolen vehicle would be operated in an unsafe manner, causing injury.
The S.C.C. ruling affirms that a duty of care requires that the risk of harm be reasonably foreseeable and not a mere possibility.
Notably, Justice Russel Brown (supported by Justice Clement Gascon) dissented, finding that there was sufficient evidence in the case to substantiate that physical injury to the plaintiff was a reasonably foreseeable consequence of the defendant’s negligence in failing to secure the stolen car. Justice Brown also added that this case did not require the full application of the Anns-Cooper test to establish a novel duty of care because “it involves the unremarkable application of a category of relationships that has long been recognized as imposing a duty of care — namely, “where the defendant’s act foreseeably causes physical harm to the plaintiff.”
Finally, although Justice Karakatsanis did not find it necessary to consider whether illegal conduct could sever the proximate relationship between the parties or negate a prima facie duty of care, she did comment that the Court has consistently rejected such notion.
It will be interesting to see what impact this decision has in tort law, and whether its effect will be to raise the generally low threshold of the objective reasonable foreseeability inquiry of the Anns-Cooper test.